Dear Permission Culture: This Is Why No One Wants To Ask For Your OK

from the you-need-a-seriously-large-staff-to-get-nothing-done dept

"Just ask for permission."

When it comes to dealing with the "permission culture" that goes hand-in-hand with copyright these days, there's really no way to win. Certain rights holders claim they just want to be asked, but the actual process involved makes it seem like you'd save a ton of time just assuming the answer is "no."

Hugh Brown (a.k.a. Huge), an Australian recording artist and music business coach, experienced this circuitous process firsthand when he attempted to craft a parody of Adam Lambert's "If I Had You," entitled "If I Had Stew." Parodies are handled a bit differently in Australia, despite recent concessions in Australian fair dealing laws. According to APRA (Australasian Performing Rights Association), "lyric changes and parodies of works must [be] cleared directly with the copyright owner."

"If I Had You" wasn't written by Lambert, but by Swedish songwriting team Maratone (Max Martin, Shellback and Kritian Lundin). But Huge couldn't approach Maratone directly as its website indicated that all the trio's songs were owned by the writer's respective labels. So he emailed Maratone and sent another form asking RCA/Jive Records for permission to make this recording.

Huge heard nothing from Sony but did hear back from Maratone... who told him to contact Kobalt Music Publishing and clear it with EMI as well. Quick count of players involved: There's Maratone, the trio of songwriters behind Adam Lambert (who's likely off sleeping the undisturbed sleep of successful angels). Sony Music. RCA/Jive Records. Kobalt Music Publishing. And EMI. That's four labels and not a single person willing to discuss clearing Huge's parody.

A couple of weeks pass and Sony still hasn't responded. Kobalt UK and EMI Australia have... sort of. The two labels directed Huge to yet another set of forms to fill out, despite him having given them all this information in his initial emails. The new forms aren't even for requesting permission to record a parody. All they do is assist the labels in compiling a price quote on the as-of-yet unrecorded song. And even if permission is granted, it likely still won't be enough. EMI only owns one-third of the track in question. Songwriter Savan Kovetchka, an EMI signee, contributed to Lambert's track, along with Max Martin and Shellback. This means Huge still needs permission from the other two songwriters and some sort of answer from Sony.

It's now nearly a month since Huge first made contact and no progress has been made. Sony appears to be ignoring his requests. If anything, he's furtherbehind than he was 27 days ago, when this whole thing kicked off. The "good" news is that Kobalt Media (representing Kotecha) said "yes," giving Huge one-third of a "permission" -- pending EMI's approval... and when it comes to getting written permission, one-third of a permission slip is worth approximately one-third of nothing. Huge did the right thing and asked (and asked... and asked) for permission, but despite the ever-growing list of interested parties, it looks as if "permission" might be something they simply can't give. And then... things go completely off the rails.

Huge opens his last post on the debacle with, "Well, I'm gobsmacked! No wonder the major labels are in so much trouble." Kobalt has given their blessing but EMI begins a long process of royalty-related correspondence so twisted it would make Joseph Heller proud.

It starts out with a simple request for clarification by EMI.

What is your main goal for this use?

In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form. Is this principally for release as an mp3 single?

Huge responds:

To be honest, my main intention is to make the song for my own amusement.

If I play it to few people who agree with me that it's fun and good, then I'll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.

If it gets any traction on YouTube, then I'll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.

Gauging the market before putting the song up for sale is just common sense and YouTube's a pretty good place to get quick feedback. But as soon as YouTube is mentioned, EMI fires off a preliminary standard contract for sync rights, showing that its share of any money generated would be 33.34% and a guesstimated one-time fee of $1000.

Huge forwards EMI his approval letter from Kobalt, which sends the label off on an entirely different tangent.

I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip. If you want to request approval to record and release this song you will need to get in contact with our copyright department.

So, Huge has been talking to the wrong people. He sends a letter back acknowledging the fact that he (obviously) can't sync the video until after he's recorded the song. He asks EMI for a contact name in the copyright department and receives this in response:

Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?

This a question that can't be answered. According to APRA/AMCOS rules, Huge needs to secure permission before he can worry about uploading it to YouTube. He tries again to get EMI to follow his line of thinking: get permission, record, upload.

That depends on whether I am allowed to use Sony's backing music or whether I have to completely re-record it myself ... still no word from Sony.

My instinct is to clear everything before I do anything. If I know what it's all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...

EMI takes this clear statement of ducks-in-a-row and it decides that the mechanical license question needs to be clarified before anything else can proceed, except that other stuff (getting permission) also needs to happen first and perhaps simultaneously.

So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?

If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.

At this stage, Huge is still waiting for permission from two more writers. EMI, however, only seems to be concerned with properly licensing a song that a.) doesn't exist and b.) quite possibly won't exist if permission is denied. It's also given Huge the "opportunity" to pay an upfront fee of $1000 for a track he might not even make. Huge (once again) points out his thought process: permission, record, YouTube/mp3. This repeated clarification makes no difference. EMI is still hung up on the mechanical license for syncing when it's not trying to just punt the whole thing over to the copyright department. EMI also insists that its previously mentioned $1000 "contract" is valid for only four weeks, after which it will need to issue a new contract. Huge points out (again) that he still is waiting on permission to record.

EMI responds with this amazing statement, which baldly states that the label doesn't particularly care whether or not Huge ever gets a chance to record this parody if he's not willing to throw some cash its way:

We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.

Huge attempts to wrap his mind around this:

OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...

Alternatively, they won't ask for permission for me to record the parody until ... I've recorded it and know what I'm gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!

Precisely. If you want artists to play nice within the confines of your system, then you need to have a workable system, not just a set of loosely-related entities all acting independently and in their own best interests. Having multiple layers of corporate bureaucracy standing between two artists only hurts those who are actually trying to do the right thing. If Huge had gone the other way and decided that it was easier to ask forgiveness than permission, I can guarantee that any sort of takedown or cease-and-desist would come from a single source. When it comes to saying "no," you generally only need one person. But to get a "yes?" That's a "team" effort, apparently.